The Court of Cassation considered that the franchise agreement, concluded in consideration of the person of the franchisor can not, except with the franchisee, be transmitted by the effect of a partial contribution of assets placed under the division.
A company can be created with a merger a new legal entity, a merger, division, operations which involve transfer of all assets of the merged companies to the new corporation, or assets of the company being acquired or acquiring company to split (C. com., art. L. 236-3).
Article L. 236-22 of the Commercial Code also submit the partial contribution of assets to the system of divisions, the effect of transfer of assets and then having to be accommodated within the given industry.
The acquiring company or the company resulting from the merger event of a merger with creation of a new corporation is substituted, actively and passively, as universal rights and obligations of companies being acquired or merged.
Contracts intuitu personae are however subject to a special regime for transmission and require the agreement of the other party to such transmission.
A contract is entered into a personal basis in consideration of the person of the other party, that is those that we do not sign with anyone.
It is not easy to characterize the existence of a personal basis.
The contracts are free in principle, concluded a personal basis. Similarly, the contract term.
The sales contract is itself likely to be concluded with any person.
The parties to a contract may expressly state that it is also concluded a personal basis.
The Supreme Court said that the franchise agreement is a contract a personal basis.
To prevent mergers or partial contributions of assets are doomed to failure because of the intuitus personae, it is necessary to anticipate the consent of the franchise, by a contractual provision allowing well in advance to ensure the transferability of contracts.
Yann Gallon - Lawyer
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